Experimental Use Exception: An International and Comparative Overview with a Possible Answer to The Forthcoming Indian Patent Legislation

Authors:

Nagarsheth, Aditya

Keywords:

Experimental use exceptionIndian patent legislation

Issue Date:

Nov-2004

Publisher:

CSIR

Abstract:

Experimental use exception allows researchers to use patented inventions for carrying out experiments and research without taking the licence from the patent holder. Experimental use exception is a recognized exception to patent laws across the globe. However, differences arise on the nature and scope of the exception. These differences are largely dependent on the nation’s economic circumstances, capability and level of existing science and technology standards and its prospects of exploitation. Hence, United States, being an economic superpower and global leader in most of the technologies provides for an extremely limited experimental use exception to patent rights. However, for countries like India, where science and innovation is still at a nascent stage, it would be prudent to learn from history of Japan and allow an extremely broad experimental use exception to bolster research and innovation. This paper deals with the international position of exceptions to patent laws. An experimental use exception and its importance is also explained. Comparison of the present legal position in England, United States, Germany, Japan and India on experimental use exception to patent laws is also given in detail. In the end, it draws out the rationale for a broad experimental use exception for India and concludes with some emerging issues where further research is required.

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